Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I spoke for a bit less than an hour. You can watch the presentation HERE. I used a power point, which isn’t visible on the video. If you’d like it, please e-mail me and I will send it to you.

Over the next few days, I’m going to use this space to share the ideas that I shared at VLS. The ideas are limited to how the Rules of Professional Conduct can be used to increase access to legal services. Many other ideas exist and are worth discussing. However, they are beyond the scope of the ethics rules and, therefore, beyond the scope of this column.

Cognizant that several readers have informed me that shorter posts receive more attention, I will break this series into 5 posts:

Increasing Access: It Must Be Ethical

Limited Licenses

Limited Representation/Ghostwriting/Flat Fees

Emergency Financial Assistance to Clients

Non-Lawyer Ownership & Management of Law Firms

Increasing Access: It Must Be Ethical

I’ll start as I did at VLS: stop reading this blog and go volunteer an hour of your time. For years, we’ve held fanastic seminars aimed at devising solutions to solve the justice gap. That’s great, but at some point it’s just lawyers being lawyers. Most of you know that my background is in basketball. Basketball players & teams don’t get better by sitting around and talking about getting better. They get better by playing basketball. To that end, talking about the justice gap won’t help to reduce it. Reducing it will reduce it.

As a profession, we excel at forming committees, holding hearings, and drafting, re-drafting, and issuing reports. Too often, those reports sit on shelves or today’s electronic equivalent. Absent action, the hours devoted to the reports would have been better spent volunteering at a rent escrow clinic or taking a pro or low bono case.

And there’s plenty to do.

For those of you not aware of the numbers, Judge Davenport conducted a study in 2012. The studied revealed a staggering number of self-represented litigants:

Active parentage cases: 84%

Tenants: 90% (vs 24% of landlords)

Collections Defendants: 84% (vs 2% of the plaintiffs)

Foreclosure Defendants: 74% (vs 1% of the plaintiffs)

Divorce: 54%

These five types of cases accounted for 72% of the civil docket.

Don’t get me wrong: many lawyers are providing top-notch work to clients who have little or no ability to pay. Among them, the staff attorneys at Vermont Legal Aid, LawLine of Vermont, and the Defender General’s office. Further, there are several excellent programs that are up & running. At the risk of excluding some, I’ll list a few off the top of my head:

But I don’t think the numbers have improved since Judge Davenport’s study.

So, to the Rules of Professional Conduct we go.

Don’t let anyone tell you that the rules prohibit or impede lawyers from participating in programs designed to increase access. That is pure BS. Here are a few quotes from the Preamble,

“A lawyer is a public citizen having special responsibility for the quality of justice.”

“A lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.”

“A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”

“Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”

Hmm. Seems rather clear to me that the rules do not impede ensuring access to justice. Quite the opposite.

For me, it comes down to this: what do the rules prohibit? Yes, we have lots of rules, many of which are written in perfect legalese. But, I’ll never forget something that a Vermont attorney for whom I have the utmost respect told me shortly after I’d been named disciplinary counsel in 2000: “the rules are great, but remember, it’s lawyers who lie, cheat, or steal who you should focus on.”

Isn’t that exactly it? No lying, no cheating, no stealing.

Oh, I hear you thinking right now: “but Mike! what about diligence? or conflicts?” My response: a lack of diligence is a form of lying. A conflict is cheating.

From there, it’s simple. Helping those in need is not lying, cheating, or stealing. I don’t know how else to say it. For those of you who need a cite, here’s something that the Louisiana Supreme Court said in 1976 and to which I will return in a follow-up post:

“no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.” La. State Bar Ass’n v. Edwins, 329 So. 2d 437 (1976).

In sum, the Rules of Professional Conduct do not impede lawyers from helping those in need to access legal services.

With that out of the way, I will use the next 4 posts in this series to discuss ways that the rules can be used to increase access.

Kind of a lame quiz last week. I take the blame. I was too busy relaxing at my Dad’s to fire up my brain. So, I picked 4 numbers at random & (re) used one question from each corresponding week of the quiz. Spoiler alert: the answers follow the honor roll.

By rule “a lawyer shall not prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless ________

A. The lawyer or other recipient is related to the client. Rule 1.8(c)

B. The client gives informed consent

C. The client gives informed consent, confirmed in writing

D. The client is advised of the benefit of seeking independent legal advice and given a reasonable opportunity to do so

Question 2

Attorney called me with an inquiry. She expressed concern that the area of law in which she focuses is fraught with conflicts and that she often struggles to identify her client. I shared some thoughts & referred her to material that discussed “The Tripartite Relationship.”

C. A conflict based on a personal interest of the lawyer. (Unlike the conflicts in A & B, this type of conflict is not automatically imputed to other lawyers in the firm. See, Rule 1.10 (a)(1)).

D. Trick question. Each is treated the same as the others.

Question 5

Identify the document in which two groups of people who had originally intended to live in Virginia agreed to:

“convenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof do enact constitute and frame such just and equal laws, ordinances, acts and constitutions . . .”

Happy Thanksgiving! I hope everyone had a relaxing holiday. This week’s version of Five for Friday comes to you live & on location from Flat Rock, North Carolina. This is where my dad resettled upon leaving Vermont and it’s also the home of Hubba Hubba Smokehouse, the official BBQ joint of Five For Friday. If you’re ever in Western Carolina, make sure to check it out.

no rules. this quiz is open book, open search engine.

email answers to Michael.kennedy@vermont.gov

answers will be posted on the blog on Monday morning

team entries welcome

Question 1

By rule “a lawyer shall not prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless ________

A. The lawyer is related to the client

B. The client gives informed consent

C. The client gives informed consent, confirmed in writing

D. The client is advised of the benefit of seeking independent legal advice and given a reasonable opportunity to do so

Question 2

Attorney called me with an inquiry. She expressed concern that the area of law in which she focuses is fraught with conflicts and that she often struggles to identify her client. I shared some thoughts & referred her to material that discussed “The Tripartite Relationship.”

Identify the type of law upon which Attorney focuses?

Question 3

The Vermont Rules of Professional Conduct specifically require:

A. Three way reconciliation

B. An attorney’s signature

C. Collected funds prior to disbursement

D. All of the above

Question 4

Which is different than the others?

A. A conflict of interest involving a former client

B. A conflict of interest involving concurrent clients

C. A conflict based on a personal interest of the lawyer

D. Trick question. Each is treated the same as the others.

Question 5

Identify the document in which two groups of people who had originally intended to live in Virginia agreed to:

“convenant and combine ourselves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof do enact constitute and frame such just and equal laws, ordinances, acts and constitutions . . .”

Lawyer works at Firm and represents Client. Lawyer leaves for another job, Client’s paper files (and business) follow. Some of Client’s information, however, remains at Firm. In particular, electronically stored files that include sensitive information.

Scenario:

Person becomes involved in a dispute with Client.

Lawyer represents Client.

The dispute is substantially related to a matter in which Lawyer initially represented Client while formerly employed at Firm.

The electronically stored files that Lawyer left behind include a strategy memo that outlines Client’s strategy to the entire case.

Question: can Firm represent Client?

A. No

B. Yes

C. Yes, as long as any review of the ESI is limited to info needed to determine whether a conflict exists.

The Analysis

The Rule

Rule 1.10(b) says:

“When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless:

the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

any lawyer remaining in the firm has information that protected by Rules 1.6 and 1.9(c) that is material to the matter.

The Issue

From the facts, we know that Person’s interests are materially adverse to Client’s and that the instant matter is substantially related to the matter in which Lawyer represented Client while still employed at firm. So, the issue becomes Rule 1.10(b)(2): whether any lawyer remaining at Firm has information that is protected by Rules 1.6 and 1.9(c) that is material to the matter.

What say ye? The electronically stored information is protected and is material to the matters. Do the remaining lawyers have it?

A New Jersey court recently addressed this exact issue.

The New Jersey Case

The case is Estate of Kennedy v. Rosenblatt. The opinion is HERE. A quick recap:

Plaintiff sued the Estate of Kennedy.

Firm represented Estate.

Plaintiff voluntarily dismissed complaint.

Estate’s lawyers left Firm, taking Estate and its paper files with them.

Oddly, Plaintiff’s lawyer joined Firm, where he recommenced suit against Estate.

Senior Lawyer and Firm’s IT staff conducted an analysis of the electronic file.

Estate’s lawyers, who used to be a Firm, moved to disqualify Firm.

A trial court granted the motion. An interlocutory appeal followed.

On appeal, there was no dispute that the two matters were substantially related. Nor was there any dispute that the electronic files were protected by Rules 1.6 and 1.9(c). The only dispute was over the meaning of “has information.”

Plaintiff argued that “has information” means “has actual knowledge of the information and its contents.”

The Estate argued that “has information” means “has access to.” In the alternative, Estate argued that the senior lawyer who analyzed the electronic information gained knowledge thereof and, as such, “had” the information.

The Court concluded that “has information” means:

has actual knowledge; or

has accessed the electronic file; but,

there’s an exception for limited access made to investigate a potential conflict.

The court remanded the matter to the trial court for further proceedings. Specifically, the court noted that the record did not contain sufficient information for it to determine whether Senior Lawyer “has” any information. Among other questions the court instructed the trial court to address:

did Senior Lawyer merely access metadata to determine who had accessed the substantive contents of the electronic file?

In sum, the appellate court suggested that the trial court should not disqualify firm if Senior Lawyer’s review was limited to accessing only that information needed to determine whether a conflict existed. Such a limited review is not the equivalent of “having” information.

Update: In August, I reported that the ABA had amended Rule 8.4(g) of the Model Rules of Professional Conduct. As amended, the rule makes it unethical to engage in harassment or discrimination in the practice of law. My blog post is HERE.

In the post, I included a survey asking whether Vermont should follow the ABA’s lead and amend its version of Rule 8.4(g). The results:

Yes. 53%

No. 42%

I need more info. 5%

Last week, the Vermont Supreme Court’s Civil Rules Committee reviewed Model Rule 8.4(g) and, with some tweaks, voted to amend V.R.Pr.C. to track the ABA rule. The proposed amendment will soon go out for notice & comment. I don’t know when and I have not yet seen the version that will go out for comment.

At the ABA level, the fight to amend Rule 8.4(g) drew a lot of attention and debate. An excerpt from my blog is re-printed below. If this issue interests you, stay tuned to the Court’s next memo to the bar for notice of the proposed amendment.

********************************

Rule 8.4(g) of the Vermont Rules of Professional Conduct makes it professional misconduct for a lawyer to:

“(g) discriminate against any individual based on his or her race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth or age, or against a qualified handicapped individual in hiring, promoting, or otherwise determining the conditions of employment of that individual.”

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not prohibit legitimate advice or advocacy consistent with these rules.”

A recap of the debate is HERE. The Report from various commissions and committees that advocated for the resolution is HERE.

I’m curious: should Vermont amend its Rule 8.4(g) to bring it into line with the ABA version?

“Pretexting” is a violation that can arise in various contexts. Of those listed below, lawyers are best reminded to avoid pretexting while using:

A. Cell phones

B. Cloud based practice management systems

C. Trust Accounting software

D. Social Media. (Generally, pretending to be someone else, or a neutral, to access information that is otherwise private)

Question 2

Which is different than the others?

Answer A is allowed by Rule 1.5(d). The others are prohibited by the same rule.

A fee that is contingent upon:

A. the amount of past due spousal maintenance awarded in a post-judgment action

B. a dismissal, plea to a reduced charge, or not guilty verdict.

C. the amount of a property division in a divorce.

D. the amount of child support awarded in a divorce or custody matter.

Question 3

Someone asked me a question at a CLE I did this week. I responded “well, that’s a violation in & of itself.” Then I gave on some thoughts on what to do next.

What was the (increasingly common) question?

A. I came into possession of evidence of a client’s crime. What now?

B. An ACH into my trust account was reversed. What do I do now?

C. I had a hearing the other day. I guess I’d forgotten, but I’ve been Facebook friends with the judge since well before the judge was appointed to the bench. The opposing party’s lawyer called it to my attention after the hearing. What do I do?

D. I have funds in trust and I don’t know who they belong to. What do I do?

Question 4

For the purposes of the Vermont Rules of Professional Conduct, what do the following people have in common?

Bar counsel;

A lawyer in an approved lawyer’s assistance program; and

A lawyer on the VBA’s Professional Responsibility Committee

Exempt from the rule that requires lawyers to report misconduct of other lawyers.

Question 5

Many years ago, a Vermont lawyer moved to recuse a judge. The judge declined. The lawyer filed a motion to reconsider in which he stated that even a “crack whore” would recognize the conflict that the judge had missed. I prosecuted the lawyer for violating the rule that prohibits conduct that is degrading or disruptive to a tribunal.

Last month, Richard Posner, a judge on the 7th Circuit Court of Appeals, announced that he’s working on a book entitled Strengths and Weaknesses of the Legal System. Per Posner, one of the weaknesses of the legal system is the federal judiciary, including the U.S. Supreme Court. At a recent bookstore appearance, Posner said:

“I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”

According to Posner, of the current U.S. Supreme Court, “probably only a couple of the justices are qualified. They’re OK, not great.” He named two, stating that their opinions “are readable and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions.”

Name the two current justices who Judge Posner said are qualified to serve on the U.S. Supreme Court.

“Pretexting” is a violation that can arise in various contexts. Of those listed below, lawyers are best reminded to avoid pretexting while using:

A. Cell phones

B. Cloud based practice management systems

C. Trust Accounting software

D. Social Media

Question 2

Which is different than the others?

A fee that is contingent upon:

A. the amount of past due spousal maintenance awarded in a post-judgment action

B. a dismissal, plea to a reduced charge, or not guilty verdict.

C. the amount of a property division in a divorce.

D. the amount of child support awarded in a divorce or custody matter.

Question 3

Someone asked me a question at a CLE I did this week. I responded “well, that’s a violation in & of itself.” Then I gave on some thoughts on what to do next.

What was the (increasingly common) question?

A. I came into possession of evidence of a client’s crime. What now?

B. An ACH into my trust account was reversed. What do I do now?

C. I had a hearing the other day. I guess I’d forgotten, but I’ve been Facebook friends with the judge since well before the judge was appointed to the bench. The opposing party’s lawyer called it to my attention after the hearing. What do I do?

D. I have funds in trust and I don’t know who they belong to. What do I do?

Question 4

For the purposes of the Vermont Rules of Professional Conduct, what do the following people have in common?

Bar counsel;

A lawyer in an approved lawyer’s assistance program; and

A lawyer on the VBA’s Professional Responsibility Committee

Question 5

Many years ago, a Vermont lawyer moved to recuse a judge. The judge declined. The lawyer filed a motion to reconsider in which he stated that even a “crack whore” would recognize the conflict that the judge had missed. I prosecuted the lawyer for violating the rule that prohibits conduct that is degrading or disruptive to a tribunal.

Last month, Richard Posner, a judge on the 7th Circuit Court of Appeals, announced that he’s working on a book entitled Strengths and Weaknesses of the Legal System. Per Posner, one of the weaknesses of the legal system is the federal judiciary, including the U.S. Supreme Court. At a recent bookstore appearance, Posner said:

“I’m very critical. I don’t think the judges are very good. I think the Supreme Court is awful. I think it’s reached a real nadir.”

According to Posner, of the current U.S. Supreme Court, “probably only a couple of the justices are qualified. They’re OK, not great.” He named two, stating that their opinions “are readable and sometimes quite eloquent. The others, I wouldn’t waste my time reading their opinions.”

Name the two current justices who Judge Posner said are qualified to serve on the U.S. Supreme Court.

The opinion is thorough. I recommend reading it because it touches on so many areas in which a lawyer’s lack of a basic understanding of social media & how it works could lead to an ethics violation.

Some of you might be thinking: “I know how I’ll avoid violations: I won’t use social media at all.” If so, I cannot stress this enough: THINK AGAIN!

Don’t want to use social media? Ok. What, though, is your response if:

an ethics complaint (or malpractice claim) is filed against you in which a client alleges that you refused to review an opposing party’s social media platforms?

opposing counsel informs the judge that your client’s social media postings are wholly inconsistent with claims & contentions you’ve made to the court on the client’s behalf?

opposing counsel places a litigation hold on a client’s ESI, including social media postings?

a client asks if her company’s social media postings comply with SEC, FTC, or FDA regulatory guidelines?

a client asks if her heightened settings create a reasonable expectation of privacy?

a juror’s social media posts would’ve caused a reasonable attorney to think twice about keeping the juror?

your employee is using a fake social media account to review your clients’ adversaries’ social media platforms?

If those questions aren’t enough to make your read the D.C. Opinion, at least consider this paragraph:

“Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1 requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently under Rule 1.3. Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances. We do not advise that every legal representation requires a lawyer to use social media. What is required is the ability to exercise informed professional judgment reasonably necessary to carry out the representation. Such understanding can be acquired and exercised with the assistance of other lawyers and staff.”

In other words, as I’ve blogged before, competence includes tech competence.

Hans called with an inquiry. I listened, then replied: “one of the first things you need to decide & make clear is whether Luke will be representing you, or, stepping in to represent your clients. I recommend the former.”

Attorney called to ask which ethics issues should be on her radar as she transitions to a new job. In particular, issues that are likely to arise more often in the new gig than they arose at her firm. I responded: “first, ask yourself ‘who is the client?.’ That’s often the #1 challenge for lawyers in your position. Be especially aware that the people you work with & for may not always understand that you don’t necessarily represent them.”

Given my response, it’s most likely that Attorney is taking a job as a[n]:

A. judge

B. lobbyist

C. government attorney. See, Rule 1.13, Comment 9. For more on a government attorney’s critical need to identify the client, read this post from NAAG

D. law professor

Question 4

Attorney called me with an inquiry. I listed, then said “a comment to the rule makes it clear that the rule doesn’t apply to an organization’s former constituents.”

Given my statement, it is most likely that Attorney called me to discuss the rule that deals with what topic.

Rule 4.2’s prohibition on communicating with a represented person does not apply to a represented organization’s former constituents. See, Rule 4.2, Comment [7].

Question 5

I guess this is fitting on Veterans Day. Your job is to fill in the blank.

In a movie’s famous courtroom scene, Lawyer objected to testimony and asked that it be stricken from the record. The following exchange ensued:

Judge: “The objection’s overruled counsel.”

Lawyer: “Sir, the defense ________ objects and requests a meeting in chambers so that his honor might have an opportunity to hear discussion before ruling on the objection.

Judge: “The objection’s overruled counsel.”

A few moments later, the court went into recess. Annoyed with Lawyer, Co-counsel said:

“I ______ object? Is that how it works. Objection. Overruled. No, no, no, no I _______ object. Oh, well if you ______ object, let me take a moment to reconsider.”

What’s the missing word? In A Few Good Men, Lieutenant Commander JoAnne Galloway (Demi Moore),“strenuously” objected after her first objection was overruled.. Lieutenant Sam Weinberg’s (Kevin Pollak) rejoineder is HERE.

*Permanent “Honor Roll” status for anyone who correctly names the restaurant that Nectar owned before he opened Nectar’s.

Patrick Kennedy and Beth DeBernardi knew that Nectar owned The Lure. The restaurant was on Williston Road in South Burlington, essentially across the street from where McDonald’s sits now. I don’t remember The Lure. My earliest memory is of a Big Burger being on the lot. Then, for years, it was Burger King. Now it’s an Urgent Care facility. Oh the irony.